Wayne Wilson v. Department of Developmental Services (SPR 20210478)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 10, 2021 SPR21/0478 Erin G. Brown, Esq. Assistant General Counsel Department of Developmental Services 500 Harrison Avenue Boston, MA 02118 Dear Attorney Brown: I have received the petition of Wayne Willis appealing the responses of the Department of Developmental Services (Department) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 26, 2020 and January 1, 2021, Mr. Willis requested certain communications from the Department. Prior Appeal This appeal was subject to a prior appeal. See SPR21/0172 Determination of Supervisor of Records (February 9, 2021). In my February 9th determination I found it was unclear whether the Department was charging for segregation or redaction that is not required by law. The Department was ordered to provide Mr. Willis with a response to the request, in manner consistent with this order, the Public Records Law and its Regulations. On February 25, 2021, the Department provided said response. Unsatisfied with the response, Mr. Willis petitioned this office and this appeal, SPR21/0478, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A (d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

James Bergeron Esq. SPR21/0478 Page 2 March 10, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In its February 25th response, the Department states “DDS does not agree to waive fees because it has determined that it is not in the public interest to do so (see 950 CMR 32.07(2)(k)); your records requests relate to your personal litigation against DDS, which is not a matter of public interest.” In a response sent to this office on March 9, 2021, the Department confirmed the existence of ongoing administrative proceedings and that the proceedings are related to the requested records. The Department states “…Mr. Wayne Willis…requested an increase in the individual Participant Directed Program (‘PDP’) budget, and in connection therewith requested to modify the 2018-2019 Individual Support Plan (‘ISP’) and appealed the Department’s denial of the same, which is designated as DDS2019-028-I. Appellant/Requestor further appealed the 2019-2020 ISP and 2019-2020 Plan of Care (‘POC’) which are designated as DDS2020-004-I.” Active Administrative Proceeding 950 C.M.R. 32.06(1)(g) provides in pertinent part: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records. 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on these matters at this time. See 950 -- C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Conclusion Accordingly, I will now consider this administrative appeal closed.

James Bergeron Esq. SPR21/0478 Page 3 March 10, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Willis James Bergeron, Esq.